Update: On March 26, China’s Taiwan Affairs Office announced that Taiwanese human rights activist Lee Ming-che had been formally arrested on charges of “subverting state power.” Jerome Cohen has added a new comment to this essay. To skip to that comment, click here.

Taiwanese human rights activist Lee Ming-che mysteriously disappeared in China on March 19. Ten days later, Beijing, having ignored the Taiwan government’s frantic appeals for information through prescribed channels, finally admitted that Lee has been placed in official custody on suspicion of “endangering state security.”

Yet, even today, a month later, virtually nothing more is known about Lee’s situation. Where is he being detained and by whom? What evidence justifies his detention? Does he have a right to meet his family, see a lawyer, and consult a Taiwan official? How long can he be held until charged with an offense or released? Can he get a fair trial? Why did Beijing not promptly notify Taipei of Lee’s detention, as required by their Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement, a compact in force since it was concluded in 2009? Why has Beijing gone to great lengths to avoid cooperating with Taipei?

Lee was “disappeared” while entering Mainland China from Macau. A former worker for Taiwan President Tsai Ing-wen’s Democratic Progressive Party (DPP) and more recently an administrator at a Taipei community college, he has been a long-term volunteer for Taiwanese human rights NGOs. He often discussed human rights, democracy, and Taiwan’s experience on Chinese social media, called for support for the families of detained Chinese human rights activists, sent Taiwanese books on history, literature, and social sciences to Chinese friends, and traveled to the mainland every year to see them.

Why the Detention?

We do not know what triggered China’s interest in Lee. Although he was only an after-hours volunteer with Taiwan human rights NGOs, he may be suspected of violating China’s new Law on the Management of Foreign Non-Governmental Organizations’ Activities in the People’s Republic of China (Foreign NGO Law), which went into effect January 1. The Law demands that criminal responsibility be pursued for overseas NGO workers who exhibit criminal conduct such as advocating “separatism,” undermining national unity, or subverting national sovereignty. It has tightened the space for domestic civic groups in their interaction with the outside world. Its application, although still maddeningly uncertain, surely covers Taiwanese as well as foreign NGOs that carry out activities in Mainland China.

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It may have been Lee’s earlier work for the DPP, however, that especially drew Beijing’s attention. Yet Lee’s case actually appears to be similar to the many criminal cases currently brought against mainland activists who, despite the Communist Party’s intensifying crackdown, have simply sought to preach and practice political and civil rights.

Some observers have more conspiratorial speculations. One view is that Lee’s detention may be retaliation for Taiwan’s arrest of a former mainland student for espionage early in March. A more optimistic explanation sees Lee’s detention as the mistaken decision of over-zealous Guangdong provincial officials operating without the approval of the central government.

One thing is certain: The crime of “endangering national security” in China is so broadly interpreted as to allow the authorities to punish anyone who criticizes the regime. The reference to “national security” also suggests that Chinese police may have invoked the new provision in the 2012 Criminal Procedure Law regarding “residential surveillance.” It allows police to ignore the Law’s usual criminal detention time limits and instead impose on the suspect up to six months of incommunicado confinement “at a designated location” as long as they assert a suspicion that the case might involve some aspect of national security. It has proved to be an invitation to torture. In such cases, police alone, without the approval of prosecutors or judges, can deny Chinese lawyers access to Taiwan detainees. Taiwan officials have no access either. China had negotiated with the Kuomintang (KMT) government about a consular-type agreement, which would have allowed Taiwan officials based in China to visit detained Taiwanese, but the negotiations were never concluded.

The Relevance of the Cross-Strait Judicial Assistance Agreement

Beijing’s handling of the Lee case prompts one to question what the Judicial Assistance Agreement is really worth. The Agreement was signed in 2009 by semi-official proxies of the two governments: Beijing’s “Association for Relations Across the Taiwan Straits” (ARATS) and Taipei’s “Straits Exchange Foundation” (SEF). It was a landmark achievement of the first term of Taiwan’s President Ma Ying-jeou, leader of the then dominant KMT Party. Ma was delighted when Beijing’s early implementation of the Agreement resulted in the return to Taiwan law enforcement of hundreds of Taiwanese arrested in third countries for international telephone fraud.

Yet, after Tsai Ying-wen, leader of the opposition DPP, assumed Taiwan’s presidency in 2016, Beijing cut off the flow of such suspects as part of its new policy of rejecting cross-strait institutional cooperation because of the Tsai government’s refusal to endorse the “one China” formula to which KMT governments had adhered.

Now, Beijing has further undermined the credibility of the Judicial Assistance Agreement. Its belated acknowledgement of Lee’s detention—not in response to SEF’s requests, but at a routine press conference—was itself a violation of the Agreement, which obligates each party to “promptly” notify the other side when it has restricted the liberty of one of the other side’s people. Notification in this case was not “prompt,” nor was it communicated through the formal channels. Yet the Agreement provides no exceptions.

In addition, although the Agreement is silent on what particulars should be included in the notification, in order for notification to be meaningful, important information should be offered, such as the time, type, and location of detention. The Taiwan government, upon detention of mainland nationals, including the recently arrested spy suspect, offers such information when notifying China. But in Lee’s case, Beijing’s brief press conference statement provided no details.

For humanitarian purposes, the Judicial Assistance Agreement also requires the two parties “to provide facilitation for visits by family members in accordance with each Party’s own rules and regulations.” The catch, of course, is in the interpretation of the last phrase. Under President Ma, when cross-strait relations were warmer, China was generally willing to allow family members to visit detained Taiwanese. Worried about Lee’s health and his need for hypertension medicine, his wife, Ms. Lee Ching-yu, has made clear that she wants to visit him.

Beijing’s Dilemma: Coping with a Fearless Spouse

Most Chinese spouses, at least in the early stages of detention, shun publicity and rely on quiet contacts. International protests produce successful results in some cases, as in the release of Professor Feng Chongyi, an Australia-based Chinese academic who was recently held for questioning and prohibited from leaving China after conducting research on Chinese human rights lawyers. Yet the families of detainees usually fear that public protest might make matters worse.

Ms. Lee, however, refused to put her faith in unpublicized contacts. Instead, she boldly announced that she would head for Beijing on April 10 in order to seek a visit and an explanation from ARATS, the official Taiwan Affairs Office (TAO), and other agencies. She was also undeterred by the risk that she too could be detained or otherwise made hostage. To alleviate this risk, SEF agreed to have one of its legal counsel and a female official accompany her, an arrangement that was unprecedented for SEF.

The prospect of coping with Ms. Lee’s extraordinary, highly-publicized excursion was apparently too much for Beijing. Several days before her scheduled departure, a KMT legislative operative contacted her, claiming that he had quietly negotiated the release of more than 20 Taiwanese from mainland detention and had been authorized by the mainland to assist in this case. To support his claim, he gave her a photocopy of a “confession” written in what Ms. Lee recognized as her husband’s handwriting. This intermediary, whom Ms. Lee referred to as a “broker,” warned her against going to Beijing, which, he said, would only make matters worse and would prevent him from helping her. Moreover, he told her that if she persisted in her efforts, a video of her husband confessing his crimes would immediately be shown on Chinese television, as has often been done in recent cases, even before prosecution has begun.

Although Ms. Lee later said that she was sure her husband’s confession had been coerced and that the broker’s words were a threat and blackmail, she did not immediately dismiss him. She persuaded him to sign a statement that her husband would not be televised and she would be allowed to see him. In an unusual admission, the Taiwan Affairs Office subsequently confirmed that it had indeed commissioned an unnamed third party to deliver Mr. Lee’s letter to his wife and parents.

Nevertheless, Ms. Lee rejected this approach and insisted on flying to Beijing. While at Taipei airport, she learned the Taiwan Affairs Office had cancelled her “Taiwan compatriots travel permit,” which, of course, created a local media frenzy. Ms. Lee issued a strong statement revealing that the broker had told her that the case had originated as a result of an overeager provincial security officer’s desire to win favor through strict enforcement of the new Foreign NGO Management Law. According to Ms. Lee, the broker didn’t believe that the police had a “good case,” especially given its impact on the currently very sensitive cross-strait relationship.

SEF and its government superior, the Mainland Affairs Council, swiftly denounced Beijing’s cancelation of the visit, as did many members of Taiwan’s legislature from all political parties. Local media, human rights organizations, and community leaders also vociferously supported Ms. Lee’s determination to pursue her visit and free her husband. They uniformly regretted absence of the rule of law on the mainland and its failure to respect the Judicial Assistance Agreement.

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Taipei Mayor Ko Wen-je noted that China, despite being a superpower, seemed to be out of step with the “civilized world.” Failure to release Lee, he stated, would create problems for Taipei’s plan to welcome over 700 Chinese athletes to the city’s coming Summer Universiade. Many voices called for President Tsai and her Ministry of Foreign Affairs to take stronger action and mobilize foreign protests over the incident.

Beijing too felt the political heat. According to the Associated Press, a TAO spokesman warned that outside interference would “only render the issue even more complicated and harm the interest of the person concerned.” Moreover, he said: “A few Taiwanese people and groups with ulterior motives who are seizing this opportunity to attack the Mainland are doomed to failure. They will not achieve their goal of interfering in the work of relevant Mainland departments in handling the case by law.” “Attempts by the Taiwanese authorities to use the incident to attack the mainland,” he emphasized, “can only make the current, extremely grim cross-strait relationship even worse.”

But while Beijing is busy pointing the finger at Taiwan, what it fails to realize is how greatly its approach has appalled and alienated people across the Strait.

Political and Legal Implications

Although it would be wise as well as humane for Beijing to release Lee Ming-che now, his case may have just begun. Yet its lessons are already worth considering. It vividly illustrates Beijing’s continuing determination to suspend the operation of important cross-strait agreements in the current political circumstances. It also exposes not only how little respect the Chinese Government has for even the minimal human rights protections enshrined in the Judicial Assistance Agreement but also the need to provide effective means for their enforcement. Beijing has met its agenda for the short term, which is to signal non-cooperation with Tsai Ing-wen’s government. The long-term consequences of destroying the reliability and legitimacy of cross-strait institutions, however, are not in its interest. If cross-strait agreements can be brushed aside by Beijing when considered politically inconvenient, they will no longer be trusted in Taiwan. What will then be left in Beijing’s toolkit for cross-strait cooperation and stability?

The case also demonstrates Beijing’s distinct preference for secret negotiations through unofficial intermediaries over transparent procedures in the administration of criminal justice and for unchecked incommunicado detention over international standards of due process of law. The apparent resort to “residential surveillance” precludes reliance on protections applicable to ordinary defendants.

The case seems to be an example of bureaucratic bungling due to central-local tensions and lack of coordination between overlapping agencies, and it is a warning to outsiders about the new risks they may incur in promoting human rights in China. No matter what the outcome, it has seriously worsened cross-strait relations and China’s chances for attaining “soft power.”

As Mayor Ko rightly noted, China’s handling of the Lee case provides insight into why, despite all the benefits that China offers Taiwan, Beijing is not winning the hearts and minds of Taiwanese.

Comments

The sad news that the People’s Republic of China (P.R.C.) has now “arrested” Taiwanese human rights activist Lee Ming-che on charges of “subverting state power” calls for reflection and further comment.

The first point to note is that it took Beijing 68 days to decide on “arrest” while holding Lee incommunicado. This is another demonstration of the now frequent use by the police—both State Security and Public Security—of the “residential surveillance” technique to avoid the time limits of the ordinary detention/arrest procedure prescribed by China’s Criminal Procedure Law. Even the police’s distorted interpretation of the Criminal Procedure Law only allows them to hold a suspect a maximum of 37 days—an unusually long time by international standards—before a decision on “arrest” must be made. Yet, by alleging a mere suspicion of a national security violation, they are permitted to detain a suspect under residential surveillance for up to six months before applying for approval of “arrest.” Moreover, as they have done in the cases of some human rights lawyers, the police can even renew residential surveillance detention for one or more six-month terms. This makes a mockery of the Criminal Procedure Law, of course.

Second, as Taiwan’s Mainland Affairs Commission briefly pointed out, the circumstances surrounding Lee’s “arrest” further confirm Beijing’s continuing refusal to implement the important Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement since Taiwan’s new president, Tsai Ying-wen, assumed office a year ago. The P.R.C. not only failed to give the Taiwan authorities the prompt notice of Lee’s detention required but it has also failed to arrange for a family visit after almost ten weeks of detention. Taiwan’s ostensibly semi-official Straits Exchange Foundation, charged with responsibility for implementing the supposedly unofficial cross-strait agreements but now ignored by Beijing, demanded that the Chinese Government protect Lee’s rights and release evidence to back up its claims. And Taiwan’s Ministry of Justice, which enjoyed smooth cooperation with Chinese law enforcement agencies under the administration of Taiwan’s previous president, Ma Ying-jeou, was reduced to emailing China’s Procuracy, its prosecuting agency, with at least nominal authority to supervise the all-powerful secret police, to request that Lee’s health, personal security, and judicial rights be protected during the investigation.

Third, as is often the case if the suspect has not yet been coerced into giving a public “confession” on television, the “arrest” announcement is worded very carefully to suggest that the suspect has indeed confessed to the crime alleged even though he or she may only have “confessed” to taking part in democratic activities that would surely not be deemed “criminal” under a civilized government. Thus, Lee may have merely said that he did meet with human rights activists, but that in turn is twisted into confessing the “crime of subverting state power.”

Fourth, one might ask why Lee has been detained in Hunan rather than the obvious places, Guangdong or Beijing. Is it because his human rights activities extended to that province or simply because the police feel greater confidence in controlling the judicial system there? That is why Tianjin and certain other places are often selected for criminal trials in cases that have not occurred in their area.

Fifth, note that Lee is alleged to have worked with a group. Who are they? Have their detentions been announced? What are they alleged to have done? I have seen no reference.

Sixth, as the Mainland Affairs Commission statement mentions, thus far in appearing to state the reasons for “arrest,” the announcement merely engages in abstract allegations rather than facts. What behavior constitutes “subversion of state power” in this case? Only when facts are characterized in relation to the Criminal Law can meaningful knowledge be communicated.

Seventh, no mention is made of China’s newly enacted Law on the Management of Foreign NGOs. So Beijing has decided, at least at this delicate moment of widespread concern over that new Law’s enforcement, not to further aggravate foreign anxieties about possible resort to criminal punishment for perceived infractions.

Eighth, this may well be the first time a Taiwanese has been charged with “subverting state power,” as has been widely reported. In any event, this prosecution is another signal of Beijing increasing the pressure on the Taiwan regime.

Ninth, the “arrest” makes clear that, whatever the responsibility of Guangdong police for its initiation, the case is clearly now the responsibility of the central government, which has converted it into a blatant challenge to President Tsai’s government and policy. This incident can no longer be minimized as a central-local bureaucratic foul-up.

Tenth, coming shortly after the visit of Lee Ming-cheh’s courageous spouse to Washington in an attempt to heighten foreign pressure against China’s arbitrary actions, the “arrest” is plainly meant to discourage similar public protests and future rejections of secret efforts by the P.R.C. to negotiate the release of Taiwan victims of China’s repression.

Eleventh, as Radio Free Asia (RFA) has pointed out, “Lee’s case highlights the stark and growing gap in civil liberties between China and Taiwan . . .” Beijing has badly miscalculated the consequences of proceeding in this manner for its hopes in Taiwan and for its “soft power” in the world.

I like very much the statement of Sen Hong Yang, chairman of the Taiwan Association for China Human Rights, about the “arrest.” With some pardonable exaggeration, he told RFA:

“Declaring to the world that the universal values of democracy, freedom, human rights and rule of law represent subversion of state power is tantamount to making the Communists the enemy of the entire world.”